https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10652

**Republic Of Kenya** **In The High Court Of Kenya At THIKA** **Criminal Appeal Nos. E056 & E057 of 2025 (Consolidated)** **Peter Thuita Ndichu…………………………………...………………..…1ST Appellant** **Patrick Karoru Gathige……………….………..………….……….……2ND Appellant** **Versus** **Republic……………………………………………..……………………………Respondent** *(Being an appeal against the original conviction and sentence in Criminal Case number E508 of 2023 of the Chief Magistrate’s Court at Thika by Hon. D. Milimu (SRM) delivered on 6 November 2025)* **Judgment** **Background** 1. The Appellants were convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 8 January 2023 at Mukiriti Area in Thika Township, Thika West Sub-County within Kiambu County, jointly with others not before the court and while armed with dangerous weapons namely knives, they robbed Stephen Wanderi Muniu of Kshs. 6,000/= and immediately before or after the robbery, used actual violence against him. 2. Upon conviction, the trial court sentenced each of the Appellants to suffer death. 3. Aggrieved by the conviction and sentence, the Appellants preferred this appeal on the following amended grounds of appeal: 1. *That the learned trial magistrate erred in law and fact by convicting and sentencing them notwithstanding that the prosecution failed to prove its case beyond reasonable doubt.* 2. *That the learned trial magistrate erred in law and fact by failing to consider the contradictions and inconsistencies in the prosecution evidence.* 3. *That the learned trial magistrate erred in law and fact by relying on inadmissible expert evidence and exhibits.* 4. *That the learned trial magistrate erred in law and fact by relying on identification evidence that fell below the required legal threshold.* 5. *That the conviction under Section 296(2) of the Penal Code was unconstitutional in light of Joseph Kaberia Kahinga & 11 Others v Attorney General, thereby violating Article 50(2) of the Constitution.* 6. *That the learned trial magistrate erred in law and fact by disregarding the Appellants' defence.* 7. *That the sentence imposed was illegal, harsh and excessive.* **Evidence at Trial** 1. As a first appellate court, I am duty bound to evaluate all the evidence presented before the trial court afresh and to draw my own independent conclusions. This duty is, however, undertaken with awareness that I neither saw nor heard the witnesses first hand as per the case of ***Okeno v Republic [1973] EA 32***. 2. The prosecution called four witnesses in support of its case, while both Appellants testified on oath in their defence without calling any additional witnesses. 3. PW1, Stephen Wanderi Muniu, the complainant, testified that on 8 January 2023 at about 10.00 a.m., while at Mukiriti looking for casual work, he was confronted by four men, three of whom were armed with knives. They robbed him of Kshs. 6,000/= and assaulted him, with the first Appellant stabbing him in the eye, causing him to lose vision in his left eye and sustain injuries to his nose. He testified that he knew the Appellants beforehand as they were fellow casual labourers at Mukiriti market and had previously robbed him, an incident he had reported to the local chief and police. He later reported the present incident after receiving medical treatment. 4. During cross-examination, PW1 maintained that the attack occurred in broad daylight, that he clearly recognized the Appellants whom he had known before the incident, and denied being intoxicated. He explained that he delayed reporting the matter because he was undergoing treatment and recovering from the injuries sustained. 5. PW2, Jackson Thuo, the complainant's brother, testified that on 8 January 2023 at about 10.00 a.m. he arrived at Mukiriti where he worked as a casual labourer collecting rubbish. He found PW1 bleeding profusely with a severe eye injury shortly after the attack. He did not witness the robbery but immediately took PW1 to Thika Level 5 Hospital where he received treatment before taking him home. After PW1 had recovered sufficiently, he accompanied him to the police station where both recorded statements. PW2 stated that PW1 informed him that he had been robbed of Kshs. 6,000/= and a jacket by the Appellants, whom PW2 knew by their nicknames. 6. On cross-examination, PW2 reiterated that he did not witness the attack and only found the complainant after the assailants had fled. He stated that he saw people dispersing from the scene and that PW1 could barely walk because of the injuries sustained. He confirmed that he took PW1 to the police station on 10 January 2023 where they both recorded statements. He further testified that although he knew the Appellants, he was unaware of the nature of any previous disagreements between them and PW1. He also admitted that he had remained in court while PW1 testified. On re-examination, he clarified that both he and PW1 worked at the same place but PW1 had arrived earlier that morning and that his first priority upon arriving at the scene was to assist his injured brother. 7. PW3, Dr. Pauline Jimose, testified that she examined the complainant and completed the P3 Form. She observed injuries to the complainant's eye consistent with a stab wound and assessed the degree of injury as grievous harm. She produced the treatment notes, admission records and the P3 Form. The record further shows that directions were subsequently issued requiring her recall for purposes of cross-examination but that doesn’t seem to have happened. 8. PW4, No. 101160 - Police Constable Wona Quinter Ogembo, the investigating officer, testified that she took over investigations after the complainant reported the incident. She stated that upon checking the Occurrence Book she established that the complainant had reported an assault and was still undergoing treatment. The complainant later informed her that on 8 January 2023 at about 10.00 a.m., while at Mukiriti looking for work, he had been confronted by two of the attackers who searched him, robbed him of Kshs. 6,000/= and stabbed him in the eye when he resisted. PW4 testified that the complainant stated that he knew the attackers well and subsequently led police officers to where they were arrested. She stated that no identification parade was conducted because the complainant had positively recognized the suspects. She further testified that although the knife allegedly used during the robbery was never recovered, two suspects were arrested while another suspect, Edwin Patrick, escaped. 9. During cross-examination, PW4 confirmed that the complainant reported both the theft of Kshs. 6,000/= and the injuries sustained. She stated that the complainant produced hospital treatment documents and that she completed the P3 Form on 11 January 2023. She confirmed that the complainant had identified the suspects because he already knew them and that only two of the four alleged attackers were eventually arrested. On re-examination, PW4 stated that owing to the passage of time she could not recall all the details with precision. She clarified that the second accused who escaped was Edwin Patrick, and not either of the Appellants before the court, and further stated that she could not tell whether the complainant was able to see with the injured eye after the attack. 10. At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the Appellants on their defence. 11. DW1, Peter Ndichu, the first Appellant, denied committing the offence. He testified that he was arrested on 15 February 2023 while carrying out his casual work collecting garbage. He stated that he did not know the complainant, had never assaulted anyone and was not at Mukiriti on the material day. He further contended that no identification parade was conducted and maintained that he had been falsely implicated. 12. On cross-examination, DW1 admitted that he knew the Mukiriti area but stated that he could not recall where he was on 8 January 2023. He also did not call any witness to support his account. 13. DW2, Patrick Karoru, the second Appellant, also denied the charge. He testified that he was employed as a casual labourer at Gatitu and was arrested on his way home. He denied knowing either the complainant or his co-accused and maintained that he was not involved in the robbery. He further asserted that the investigating officer confused him with another suspect during her testimony. 14. During cross-examination, DW2 stated that he was at work on the date of the alleged offence but conceded that he had not produced any employment records or other evidence to support that assertion. He similarly called no witness in support of his defence. **Analysis and Determination** 1. Having considered the trial court record, the evidence and the grounds of appeal, the following issues are discernible: 2. Whether the prosecution proved the offence of robbery with violence against the Appellants beyond any reasonable doubt. 3. Whether the sentence imposed upon the Appellants was lawful. 4. ***Whether the prosecution proved the offence of robbery with violence against the Appellants beyond any reasonable doubt*** 5. The Appellants contend that the prosecution failed to prove the offence beyond any reasonable doubt; that the evidence was contradictory; that the medical evidence was inadmissible; that the identification evidence fell below the required legal threshold; and that the trial court failed to give due consideration to their respective defences. 6. The offence of robbery with violence is created under Sections 295 and 296(2) of the Penal Code. The provisions provide as follows: *295. Definition of robbery:* *Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.* *296. Punishment of robbery:* *1.…* *2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.* 1. While Section 295 of the Penal Code defines the offence of robbery, Section 296(2) provides circumstances where the commission of the offence of robbery will be considered one committed with violence. Under this provision, the prosecution is only required to prove one ingredient being whether: the offender was armed with any dangerous or offensive weapons; or whether is in company with one or more other person or persons; or whether immediately after the robbery, he wounds, beats, strikes or uses any other personal violence to any person. It is sufficient to demonstrate any of these ingredients. 2. From the evidence before trial court, there is no dispute that PW1 was violently robbed on the material day. His testimony was that four men accosted him at about 10.00 a.m. while he had gone to Mukiriti to undertake casual work. Three of them were armed with knives, they robbed him of Kshs.6,000/= and when he attempted to flee, the 1st Appellant restrained him, the 2nd Appellant swept him to the ground, whereupon the 1st Appellant stabbed him in the eye, the same knife piercing his nose. His evidence that he lost the money and sustained serious injuries was corroborated by PW2, who found him moments later bleeding profusely with his eye protruding and rushed him to Thika Level 5 Hospital. 3. The medical evidence equally corroborated the violence used. PW3 examined the complainant, completed the P3 Form and classified the injuries as grievous harm after observing a stab wound to the eye accompanied by bleeding and damage to the eyeball. The treatment notes, admission records and P3 Form were produced before the trial court. Although the Appellants challenged the admissibility of the medical evidence on the basis that the same was not produced by an identified witness, the record shows that the P3 form was filled by one Pauline Jimose. The proceedings of the court indicate that P3 was an adult female and she testified that she is the one who filled the foem. In any event, the evidence of grievous injuries was independently supported by PW1's testimony and the observations of PW2, who found the complainant immediately after the attack. I therefore find no prejudice occasioned to the Appellants by the admission of the medical evidence. It is also my considered view that the evidence of the grievous harm suffered by the complainant was not challenged by the Appellants. 4. Consequently, I am satisfied that the prosecution proved beyond doubt that the complainant was robbed of Kshs.6,000/= by persons who were armed with knives, acted jointly and inflicted grievous injuries upon him. The prosecution therefore established all the ingredients of the offence under Section 296(2) of the Penal Code. Only one element is required to prove the violence aspect of the offence. 5. The principal question for determination is whether the Appellants were positively identified as among the perpetrators of the robbery. The prosecution case was founded on recognition as opposed to the identification of strangers. PW1 testified that he knew both Appellants well before the incident as fellow casual labourers at Mukiriti market. He stated that they had previously robbed him, an incident he had reported to the area chief, the market chairman and the police. He further testified that he knew them by their nicknames. The robbery occurred at about 10.00 a.m. in broad daylight and PW1 remained unwavering that it was the 1st Appellant who stabbed him in the eye while the 2nd Appellant participated in robbing him of Kshs.6,000/=. His evidence on recognition was neither shaken properly in cross-examination nor displaced by the defence. 6. The law is settled that recognition is more reliable than the identification of a stranger. ***Anjononi & Others v Republic [1980] KECA 23 (KLR)****,* the Court of Appeal observed that: *recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.* 1. Applying those principles, I find that the circumstances obtaining at the scene favoured positive recognition. The incident occurred during the day; PW1 had known the Appellants long before the robbery; he immediately gave their identities to the investigating officer and he subsequently led the police to their arrest. PW4 confirmed that no identification parade was conducted because the complainant had identified persons already known to him. In the circumstances of this case, an identification parade would have served no useful purpose since the case rested on recognition rather than identification of strangers. 2. The Appellants further faulted the prosecution case on account of alleged contradictions and inconsistencies. Having carefully re-evaluated the record, I find that the inconsistencies relied upon are minor and do not go to the root of the prosecution case. They principally relate to whether the report was made on 10th or 11th January 2023, the date on which the P3 Form was completed and minor lapses in the investigating officer's recollection owing to the passage of time. None of these discrepancies affects the core issues, namely that the complainant was robbed in broad daylight by persons armed with knives, sustained grievous injuries, and recognized the Appellants as two of his attackers. 3. In ***Richard Munene v Republic******[2018] KECA 186 (KLR)***, the Court of Appeal held that: *It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.* 1. Applying that principle, I find that the inconsistencies identified by the Appellants are neither substantial nor fundamental and did not occasion any prejudice. They are insufficient to discredit the otherwise consistent evidence of recognition and robbery. 2. Equally, I find no merit in the challenge to the medical evidence. PW3 examined the complainant, completed the P3 Form and classified the injuries as grievous harm. The treatment notes, admission records and P3 Form were produced in evidence. Although the trial court subsequently directed that PW3 be recalled for cross-examination and summons were issued for that purpose but the same doesn’t seem to have been done, the injuries suffered by PW1 were independently corroborated by PW2, who found him immediately after the attack bleeding profusely with a severely injured eye. The medical evidence merely corroborated what was already established by the direct evidence of PW1 and PW2. 3. The Appellants' defences consisted of bare denials. Although the 2nd Appellant claimed that he was at work on the material day, he conceded during cross-examination that he had not produced any attendance register, employment records or witness to support that assertion. Similarly, the 1st Appellant admitted that he could not recall where he was on the date of the robbery and called no witness in support of his defence. In the face of the cogent and consistent recognition evidence tendered by the prosecution, their denials did not raise any reasonable doubt. 4. Having independently re-evaluated the entire evidence, I am satisfied that the prosecution proved beyond reasonable doubt that the complainant was robbed by persons armed with knives who acted jointly and inflicted grievous injuries upon him and that the Appellants were positively recognized as two of the perpetrators. The alleged inconsistencies, the challenge to the medical evidence and the Appellants' respective defences do not undermine the prosecution case. I therefore find that the conviction was safe. *ii.* ***Whether the sentence imposed upon the Appellants was lawful*** 1. The Appellants contend that their conviction under Section 296(2) of the Penal Code is unconstitutional and that the sentence imposed was illegal, harsh and excessive. They further rely on the case of ***Joseph Kaberia Kahinga & 11 Others v Attorney General [2016] eKLR*** in support of the proposition that the mandatory death sentence is unconstitutional. 2. The offence of robbery with violence under Section 296(2) of the Penal Code provides that an offender *"shall be sentenced to death."* The Supreme Court in ***Francis Karioko Muruatetu & Another v Republic; Petition No. 15 of 2015 [2017] KESC 2 (KLR)*** determined that the mandatory nature of the death penalty is unconstitutional. In subsequent Directions issued in ***Francis Karioko Muruatetu & Another v Republic; Petition No. 15 of 2015 (Directions) [2021] KESC 31 (KLR)*** *“Muruatetu II”* the Supreme Court clarified that the declaration on the constitutionality of the mandatory nature of the death sentence applies only to the offence of murder under Sections 203 and 204 of the Penal Code and does not extend to robbery with violence under Section 296(2). 3. The Supreme Court reaffirmed that position in ***Godrick Simiyu Wanga v Republic, SC Petition No. E030 of 2023***, where it observed that the High Court had substituted a death sentence for robbery with violence on the basis of *Muruatetu*, and reiterated that the ratio in *Muruatetu* was confined to murder and did not generally invalidate mandatory or minimum sentences under the Penal Code or any other statute. The court held: *We say no more, save to recapitulate that our decision in the Muruatetu Case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu Case applies only with respect to the mandatory nature of the death sentence under Sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.* 1. This Court, however, as an appellate court has jurisdiction to determine the legality of the sentence passed having examined the trial record and the determination of the lower court. The lower court record indicates that the death sentence imposed was on the basis of the mandatory requirement of Section 296(2) of the penal code. The learned trial magistrate observed that he was bound by that provision. It is noted that in passing this sentence, the Court did not exercise the discretion to consider any circumstances before the sentence was passed. In my considered view the lower court erred to that extent. 2. There is no doubt in my mind that imposition of a mandatory sentence and in this case a death penalty on the basis without considering the circumstances before the court does not accord with the constitutionally protected independence of the judiciary in meting punishment upon conviction. Judicial independence entails exercise of discretion before a sentence is passed. To that extent, the provisions of Section 296(2) of the Constitution must be interpreted in that light. I am guided by the Court of Appeal in ***Mwangale v Republic [2024] KECA 311 (KLR)*** and ***Omera v Republic [2024] KECA 720 (KLR)*** where it has been held that the sentence under Section 296(2) is a discretionary maximum sentence. In ***Mwangale***, the Court observed: *The current jurisprudence on the issue of mandatory sentences is that it is unconstitutional, as it deprives the court of the mandate to exercise its discretion in such a manner as to do justice in a way that imposes a sentence that is appropriate to the circumstances of the particular case which is at hand.* 1. The Appellants have contended that the sentence imposed was harsh and excessive. I have considered the circumstances under which the offence was committed. The complainant was attacked in broad daylight by a group of assailants armed with knives. He was robbed of Kshs.6,000/= and sustained devastating injuries after being stabbed in the eye. The medical evidence of PW3, Dr. Pauline Jimose, who personally examined the complainant and completed the P3 Form dated 30 January 2023, confirmed a deep penetrating wound to the eye resulting in grievous harm. The report further indicated that the complainant was not under the influence of alcohol, thereby dispelling the Appellants' contention that the complainant may have been intoxicated during the incident. The evidence equally answers the Appellants' complaint regarding the medical evidence, as PW3 was the maker of the P3 Form and testified before the trial court. 2. The brutality of the attack cannot be understated. The complainant permanently lost the sight of one eye after being stabbed with a knife, an injury from which he testified he has never recovered. These are aggravating circumstances which the trial court was entitled to take into account in imposing sentence. 3. I have equally considered that the Appellants were first presented before court on 16 February 2023 and remained in custody throughout the trial after failing to raise the bond of Kshs. 350,000/= granted by the trial court. The record further shows that upon conviction, the Appellants were accorded an opportunity to mitigate before sentence was passed on 6 November 2025. They were thereafter sentenced on the same date. 4. Balancing the aggravating and mitigating circumstances, I am satisfied that although this was a grave offence attracting a severe sentence, there is sufficient basis to substitute the sentence of death with a custodial sentence. I hereby set aside the sentence of death imposed by the trial court and substitute it with thirty (30) years' imprisonment for each Appellant. Further considering that the Appellant were in custody throughout the trial period, the sentence of thirty (30) years shall run from 15 February 2023, the date they were arrested. 5. In the result, the appeal against conviction fails and is dismissed. The appeal against sentence succeeds only to the extent that the sentence of death is set aside and substituted with a sentence of thirty (30) years' imprisonment for each Appellant, to run from 15 February 2023 in accordance with Section 333(2) of the Criminal Procedure Code. 6. Orders accordingly. **Judgment Dated and Delivered Virtually this 16th day of July 2026** **Nabil M. Orina** **Judge** **In the presence of:** ***The Appellants logged in through Kamiti Maximum Prison*** ***Ms. Torosi for the Respondent*** ***Linda – Court Assistant***